2011/202/EU: Council Decision of 28 February 2011 on the conclusion of a Voluntary Partnership Agreement between the European Union and the Republic of the Congo on forest law enforcement, governance and trade in timber and derived products to the European Union (FLEGT)

The Agreement between the European Union and the Republic of Congo on forest law enforcement, governance and trade in timber and derived products to the European Union (FLEGT) is hereby approved on behalf of the Union. The text of the Agreement is attached to this Decision.

The President of the Council is hereby authorised to designate the person empowered on behalf of the Union to make the notification provided for in Article 28 of the Agreement, in order to bind the Union.

The Union shall be represented by representatives of the Commission in the Joint Agreement Implementation Committee set up in accordance with Article 19 of the Agreement. The Member States may participate in meetings of the Joint Agreement Implementation Committee as members of the Union delegation.

For the purpose of amending the Annexes to the Agreement on the basis of Article 26 thereof, the Commission is authorised, in accordance with the procedure laid down in Article 11(3) of Council Regulation (EC) No 2173/2005 of 20 December 2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community , to approve such amendments on the Union’s behalf.

This Decision shall enter into force on the day of its adoption.

The objective of this Agreement, consistent with the Parties’ common commitment to the sustainable management of all types of forest, is to provide a legal framework aimed at ensuring that all timber and derived products covered by this Agreement that are imported into the Union from Congo have been legally produced and in doing so to promote trade in this timber and these derived products. In addition, this Agreement provides a basis for dialogue and cooperation between the Parties to facilitate and promote the full implementation of this Agreement and enhance forest law enforcement and governance.

For the purposes of this Agreement, the following definitions shall apply: (a) ‘Import into the Union’ means the release for free circulation of timber and derived products into the Union within the meaning of Article 79 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and which cannot be qualified as ‘goods of a non-commercial nature’ as defined in point 6 of Article 1 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 establishing the Community Customs Code ; (b) ‘Export’ means the physical leaving or taking out of timber and derived products from any part of the geographical territory of Congo, except for timber and derived products in transit through Congolese territory under the control of the customs authorities of Congo; (c) ‘Timber and derived products’ means the products listed in Annex I; (d) ‘HS nomenclature’ means a six digit code as set out in the Harmonised Commodity Description and Coding System established by the International Convention on the Harmonised Commodity Description and Coding System of the World Customs Organisation; (e) ‘FLEGT licence’ means a licence which refers to a shipment of legally produced timber or derived products; (f) ‘Licensing authority’ means the authority designated to issue and validate FLEGT licences; (g) ‘Competent authorities’ means the authorities designated by the Member States of the Union to receive, accept and verify FLEGT licences; (h) ‘Shipment’ means a quantity of timber and derived products covered by a FLEGT licence that is sent by a consignor or a shipper and is presented for release for free circulation at a customs office in the Union; (i) ‘Legally produced timber’ is deemed to be any timber from acquisition, production and marketing processes that meets all of the statutory and regulatory provisions in force in Congo applicable to forest management and logging as set out in Annex II.

1 A ‘Forest Law Enforcement, Governance and Trade licensing scheme’ (hereinafter referred to as ‘FLEGT licensing scheme’) is hereby established between the Parties to this Agreement. It establishes a set of procedures and requirements aimed at verifying and attesting, by means of FLEGT licences, that timber and derived products shipped to the Union were legally produced. In accordance with Regulation (EC) No 2173/2005, the Union shall only accept such shipments from Congo for import into the Union if they are covered by FLEGT licences.

2 The FLEGT licensing scheme shall apply to the timber and derived products listed in Annex I.

1 Congo shall designate the licensing authority and notify contact details of the licensing authority to the European Commission. Both Parties shall make this information available to the public.

2 The licensing authority will verify that timber and derived products have been legally produced in accordance with the legislation identified in Annex II. According to the terms set out in Annex III, it will issue FLEGT licences covering shipments of timber and derived products that have been legally produced, acquired or imported in Congo and are for export to the Union and any documentation required for timber and derived products in transit through Congolese territory under the control of the customs authorities of Congo.

3 The licensing authority shall not issue FLEGT licences for any timber and derived products that are composed of, or include, timber and derived products imported into Congo from a third country unless it has been proven that this timber and these derived products, imported in accordance with the terms specified in Annex III, have been produced and exported pursuant to the laws of the third country concerned.

4 The licensing authority shall maintain and make publicly available its procedures for issuing FLEGT licences. The licensing authority shall also maintain records of all shipments covered by FLEGT licences and, consistent with national legislation concerning data protection, shall make these records available for the purposes of an independent audit, while respecting the confidentiality of information regarding exporters’ industrial property.

1 The European Commission shall inform Congo of the contact details of the competent authorities designated by the Member States of the Union.

2 The competent authorities shall verify that each shipment is the subject of a valid FLEGT licence prior to releasing that shipment for free circulation in the Union. The release for free circulation of the shipment may be suspended and the shipment detained where there are doubts regarding the validity of the FLEGT licence. The procedures governing release for free circulation in the Union for shipments covered by a FLEGT licence are described in Annex IV.

3 The competent authorities shall maintain and publish annually a record of FLEGT licences received.

4 According to national legislation on data protection, the competent authorities shall grant persons and bodies designated by Congo as Independent Auditor access to the relevant documents and data.

5 The competent authorities of the Union shall refrain from the action described in Article 5(2) for timber and derived products produced from species listed under the Appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to the extent that these are covered by the provisions for verification set out in Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein . The FLEGT licence scheme shall nonetheless provide assurance of the legal harvesting of these products.

1 FLEGT licences shall be issued by the licensing authority as a means of attesting that timber and derived products have been legally produced.

2 FLEGT licences shall be laid out on a French form.

3 The Parties may, by agreement, establish an electronic system for the issuing, transmission and receipt of FLEGT licences.

4 The procedure for issuing FLEGT licences and the technical specifications are set out in Annex V.

For the purposes of this Agreement, documentation including criteria and indicators that shall serve as proof of compliance with such regulations, called legality matrices, is given in Annex II.

1 Congo shall implement a system for verifying that timber and derived products for shipment have been legally produced and that only shipments verified as such are exported to the Union. The verification system should include checks of compliance in order to provide assurance that the timber and derived products destined for export to the Union have been legally produced and that FLEGT licences are not issued in respect of shipments of timber and derived products that have not been legally produced or are of unknown origin. The system shall also include procedures to ensure that timber of illegal or unknown origin does not enter the supply chain.

2 The system for verification that shipments of timber and derived products have been legally produced is set out in Annex III.

Congo shall use the system for verifying the legality of timber and derived products in respect of all timber and derived products irrespective of the intended market.

1 If any doubt arises as to the validity of a licence, the competent authority concerned may ask the licensing authority for additional information. If no answer is received from the licensing authority within 21 calendar days, the competent authority shall act in accordance with applicable national legislation and shall not accept the licence. If, following the provision of additional information, it is established that information on the licence does not correspond to the shipment, the competent authority shall act in accordance with applicable national legislation and shall not accept the licence.

2 Where persistent disagreements or difficulties arise in consultations concerning FLEGT licences, the matter may be referred to the Joint Implementation Committee of the Agreement.

1 The Parties shall agree on the need to call on the services of an independent auditor at agreed intervals to check the performance and efficiency of the FLEGT licensing scheme as set out in Annex VI.

2 The independent auditor shall submit its observations to the Parties in reports in accordance with the procedure described in Annex VI.

3 The Parties shall facilitate the work of the independent auditor, including by ensuring that the latter has access to information as required in territories of both Parties in order to carry out its functions. However, the Parties, in accordance with the respective legislation on data protection, can keep any information that they are not allowed to disclose.

The Parties shall inform each other if they suspect or have found evidence of any circumvention of, or irregularities conflicting with, the FLEGT licensing scheme, including in relation to the following: (a) circumvention of trade, including by re-direction of trade from Congo to the Union via a third country where there is reason to believe that this has been done with the intention of avoiding applying for a licence; (b) FLEGT licences being issued for timber and derived products that include imports of suspicious origin from third countries; or (c) fraud in obtaining or using FLEGT licences.

1 The Parties shall notify each other through the Joint Implementation Committee of the Agreement when they consider they have made all the necessary preparations for the FLEGT licensing scheme to become fully operational.

2 The Parties, through the Joint Implementation Committee of the Agreement, shall commission an independent assessment of the FLEGT licensing scheme using the criteria set out in Annex VII. The assessment will determine whether the legality assurance system underpinning the FLEGT licensing scheme as described in Annex III adequately fulfils its functions and whether the procedures for receiving, verifying and accepting FLEGT licences, as set out in Article 5 and Annex IV, are in place in the Union.

3 On the basis of the recommendations of the Joint Implementation Committee of the Agreement, the two Parties shall agree on a date from which the FLEGT licensing scheme should start full operation.

1 The Parties hereby agree to the implementation schedule set out in Annex VIII.

2 The Parties, working through the Joint Implementation Committee of the Agreement, shall evaluate progress in implementation with reference to the schedule set out in Annex VIII.

1 The Parties hereby agree on the following as other relevant measures set out in Annex IX of this Agreement: (a) increasing the capacity of the General Forest Economy Inspectorate; (b) increasing the capacity of civil society; (c) legislation and regulations to be supplemented; (d) implementing a communication plan; (e) setting up a technical office for the Congolese party responsible for monitoring the Agreement.

2 The Parties have identified the areas set out in Annex IX as those in which there is a need for additional technical and financial resources in order to implement this Agreement.

3 The provision of such additional resources shall be subject to the normal procedures for programming aid to Congo in the Union and the Member States of the Union as well as the budgetary procedures of Congo itself.

4 The Parties shall consider the need for a joint arrangement by which financing and technical contributions of the European Commission and the Member States of the Union are coordinated to support these processes.

5 Congo shall ensure that strengthening its capacity to implement this Agreement is included in national planning instruments, such as poverty reduction strategies.

6 The Parties shall ensure that activities carried out under this Agreement are coordinated with relevant existing and future development programmes and initiatives.

7 The provision of such resources is subject to the procedures governing Union aid as set out in the Cotonou Agreement and those governing bilateral aid given to Congo by Member States of the Union.

1 Congo shall involve the stakeholders in the implementation of this Agreement in accordance with the international and subregional commitments it has signed up to, in particular the Convention on Biological Diversity of June 1992 and the Treaty of 5 February 2005 on the conservation and sustainable management of forest ecosystems establishing the Central Africa Forests Commission.

2 The Union shall hold regular consultations with stakeholders on the implementation of this Agreement, taking into account its obligations under the 1998 Aarhus Convention on access to information, public participation in the decision-making process and access to justice in environmental matters.

1 In order to minimise any adverse impacts, the Parties hereby agree to develop a better understanding of the livelihoods of potentially affected indigenous and local communities, including those engaged in illegal logging.

2 The Parties shall monitor the impact of this Agreement on those communities, while taking reasonable steps to mitigate any adverse effects. The Parties may agree on additional measures to address such adverse effects.

Taking into account its international obligations, the Union shall strive to promote favourable access to its market for the timber and derived products covered by this Agreement. Such efforts shall include: (a) the encouragement of public and private procurement policies that recognise efforts to ensure a supply of legally harvested forest produce, in particular timber and derived products; and (b) the promotion of FLEGT-licensed products within the Union market.

1 The Parties shall establish a Joint Implementation Committee of the Agreement to facilitate the monitoring and review of this Agreement. It also facilitates dialogue and the exchange of information between the Parties.

2 Each Party shall name its representatives on the Joint Implementation Committee of the Agreement, which shall take its decisions by consensus.

3 The Joint Implementation Committee of the Agreement: (a) shall meet at least twice a year on dates and at places agreed by the Parties; (b) shall prepare the agenda for its work and terms of reference for joint actions; (c) shall establish its own rules of procedure; (d) shall preside over its meetings by a co-chair arrangement; (e) shall ensure that its work is as transparent as possible and that information about its work and decisions is made available to the public; (f) may set up working groups or other subsidiary bodies for areas of work requiring specific expertise; (g) publishes an annual report. Details of the content of this report are given in Annex X.

4 The specific functions of the Joint Implementation Committee of the Agreement are described in Annex XI.

5 In the period between the signing of the Agreement and its entry into force, a joint mechanism for dialogue and monitoring shall be set up to facilitate implementation of the Agreement.

1 The representatives of the Parties responsible for official communications concerning implementation of this Agreement are: For CongoFor the European UnionMinister of Sustainable Development, Forestry Economy and EnvironmentHead of the Union Delegation in Congo

2 The Parties shall provide one another with the information necessary for implementing this Agreement.

1 Public disclosure of information is one of the key provisions of this Agreement for promoting governance. Information facilitates the implementation and monitoring of the system, increasing transparency. Information also allows better provision of accounts and greater accountability of the various parties involved. The information that will be divulged and made available to the public is specified in Annex X.

2 Each Party shall consider the most appropriate mechanism (media, documents, Internet, workshops, annual reports) for publishing the information. In particular, the Parties shall endeavour to provide the various stakeholders associated with the forestry industry with reliable, relevant and up-to-date information. These mechanisms are described in Annex X.

1 Each Party agrees to maintain, to the extent required under its laws, the confidentiality of confidential information exchanged under this Agreement. Neither Party shall disclose to the public, nor permit its authorities to disclose to the public, information exchanged under this Agreement that constitutes trade secrets or confidential commercial information.

2 Subject to paragraph 1, the following information shall not be considered confidential: (a) the number of FLEGT licences issued by Congo and received by the Union and the volume of timber and derived products exported from Congo and received by the Union; (b) the names and addresses of licence holders and of importers.

This Agreement shall apply to the territory in which the Treaty on the Functioning of the European Union is applied under the conditions laid down in that Treaty, on the one hand, and to the territory of Congo, on the other.

1 The Parties shall seek to resolve any dispute concerning the application or interpretation of this Agreement through early consultation.

2 If a dispute has not been settled by means of consultation within 3 months from the date of the initial request for consultation, either Party may refer the dispute to the Joint Implementation Committee of the Agreement, which shall endeavour to settle it. The Committee shall be provided with all relevant information for an in-depth examination of the situation with a view to finding an acceptable solution. To this end, the Committee shall be required to examine all possibilities enabling the effective implementation of this Agreement to be maintained.

3 In the event that the Joint Implementation Committee of the Agreement is unable to settle the dispute, the Parties may: (a) jointly seek the good offices of, or request mediation by, a third party; (b) seek arbitration. If the dispute cannot be settled in accordance with paragraph 3(a), either Party may notify the other of the appointment of an arbitrator; the other Party must then appoint a second arbitrator within 30 calendar days of the appointment of the first arbitrator. The Parties shall jointly appoint a third arbitrator within two months of the appointment of the second arbitrator. The arbitrators’ decisions shall be taken by majority vote within six months of the third arbitrator being appointed. The award shall be binding on the Parties without right of appeal.

4 The Joint Implementation Committee of the Agreement establishes the working procedures for arbitration.

1 Either Party may suspend the application of this Agreement. The decision on suspension and the reasons for that decision shall be notified to the other Party in writing.

2 The conditions of this Agreement shall cease to apply 30 calendar days after such notice is given.

3 Application of this Agreement shall resume 30 calendar days after the Party that has suspended its application informs the other Party that the reasons for the suspension no longer apply.

1 Either Party wishing to amend this Agreement shall present the proposal at least 3 months before the next meeting of the Joint Implementation Committee of the Agreement. The latter shall discuss the proposal and, if consensus is achieved, it shall make a recommendation. Each Party shall consider the recommendation and, subject to its agreement, it shall approve it in accordance with its own procedures.

2 Any amendment so approved by both Parties shall enter into force on the first day of the month following the date on which the Parties notify each other of the completion of the procedures necessary for this purpose.

3 The Joint Implementation Committee of the Agreement may adopt amendments to the annexes to this Agreement.

4 Notification of any amendment shall be sent to the joint depositaries for this Agreement.

The annexes to this Agreement shall form an integral part thereof.

1 This Agreement shall enter into force on the first day of the month following the date on which the Parties notify each other in writing of the completion of the procedures necessary for this purpose.

2 Notification shall be sent to the Secretary-General of the Council of the European Union and to the Congo Ministry of Foreign Affairs and French-Speaking Countries, who shall be the joint depositaries for the Agreement.

This Agreement shall remain in force for a period of seven years and shall be extended for consecutive periods of five years, unless a Party renounces the extension by notifying the other Party in writing at least one year before expiry of the Agreement.

Notwithstanding Article 29, either Party may terminate this Agreement by notifying the other Party in writing. This Agreement shall cease to apply 12 months after the date of such notification.

This Agreement shall be drawn up in duplicate in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each of these texts being authentic. In case of divergence of interpretation, the French text shall prevail over the other language texts.

1 The FLEGT licence, hereinafter referred to as ‘licence’, shall be lodged with the competent authorities of the Member State of the Union in which the shipment covered by that licence is declared for release for free circulation .

2 The competent authorities referred to in paragraph 1 shall, in accordance with the applicable national procedures, inform the customs authorities as soon as a licence has been accepted.

1 Paper-based licences shall conform to the model licence in Annex V.

2 A licence shall be considered as void if the date on which it is lodged is later than the date of expiry indicated in the licence.

3 Any erasures in or alterations to a licence shall not be accepted unless such erasures or alterations have been validated by the licensing authority.

4 The extension of the validity of a licence shall not be accepted unless that extension has been validated by the licensing authority.

5 A duplicate or replacement licence shall not be accepted unless it has been issued and validated by the licensing authority.

1 In case of doubt concerning the validity of a licence, a duplicate or a replacement licence, the competent authorities may request additional information from the licensing authority.

2 A copy of the licence, the duplicate or the replacement licence in question may be forwarded together with the request.

1 If applicable, the competent authorities verify whether the actual shipment complies with the corresponding licence.

2 If further verification of the shipment is considered necessary by the competent authorities, checks may be carried out to establish whether the shipment in question conforms to the information provided in the licence and to the records relating to the relevant licence which are held by the licensing authority.

3 Where the volume or weight of the timber products contained in the shipment presented for release for free circulation does not deviate by more than 10 % from the volume or weight indicated in the corresponding licence, it shall be considered that the shipment conforms to the information provided in the licence so far as volume or weight is concerned.

4 Costs incurred while the verification is completed shall be at the expense of the importer, except where national legislation of Member States concerned determines otherwise.

A licence lodged before the arrival of the shipment that it covers may be accepted if the licence meets all the requirements set out in Annex V to this Agreement and no further verification in accordance with Articles 3 and 4 of this Annex is deemed necessary.

1 Reference shall be made, in box 44 of the Single Administrative Document on which the customs declaration for release for free circulation is made, to the number of the licence that covers the timber and derived products subject to that declaration. Where the customs declaration is made by means of a data-processing technique, the reference shall be provided in the appropriate box.

2 Timber and derived products can be released for free circulation only after completion of the procedure described in this Annex.

1 A FLEGT licence is paper-based.

2 The licence shall provide the information mentioned in Appendix 1, in accordance with the notes for guidance set out in Appendix 2.

1 The FLEGT licence is to become valid on its actual day of issue.

2 The period of validity of the FLEGT licence shall not exceed nine (09) months. The date of expiry shall be indicated in the licence.

3 After its expiry the licence shall be considered as void.

4 The FLEGT licence shall cease to be valid and will be returned to the licensing authority if the timber products covered have been destroyed.

Paper-based licences shall conform to the format set out in Appendix 1.

1 The paper to be used is standard A4 format.

2 The colour of the paper to be used for the form shall be as follows: (a) white for form No 1, the ‘Original’; (b) yellow for form No 2, the ‘Copy for Union customs’; (c) green for form No 3, the ‘Copy for the licensing authority’.

1 The licences shall be completed on a computer or typewriter.

2 The stamps of the licensing authority shall be applied by means of a dry metal stamp. The licensing authority shall use any tamper-proof method to record the quantities allocated in letters and figures in such a way as to make it impossible to insert figures or additional comments.

3 The form may not contain any erasures or alterations, unless those erasures or alterations have been authenticated by the stamp and signature of the licensing authority.

4 The licences shall be printed and completed in French.

1 The licence shall be drawn up in triplicate, two copies being issued to the applicant.

2 The first copy, marked ‘Original’ shall, after being completed, signed and stamped by the licensing authority, be given to the applicant for submission to the competent authorities of the Member State of the Union in which the shipment covered by that licence is declared for release for free circulation.

3 The second one, marked ‘Copy for the European Community customs’, shall, after being completed, signed and stamped by the licensing authority, be given to the applicant for submission to the customs authorities of the Member State of the Union in which the shipment covered by that licence is declared for release for free circulation.

4 The third one, marked ‘Copy for the licensing authority’, shall, after being completed, signed and stamped by the licensing authority, be archived by the licensing authority.

1 In the event of loss, theft or destruction of the ‘Original’ or the ‘Copy for the Union customs’, the holder or the authorised representative thereof may apply to the licensing authority for a replacement on the basis of the document in their possession.

2 In the event of loss, theft or destruction of both the ‘Original’ and the ‘Copy for the Union customs’, the holder or authorised representative thereof may apply to the licensing authority for replacements of both.

3 The licensing authority shall issue the replacement(s) within two (2) weeks following receipt of the request from the holder.

4 The replacements shall contain the information and entries appearing on the previous licence, including the number. The replacement licence shall bear the endorsement ‘Duplicate’.

5 If the duplicate is lost, stolen or destroyed, no further replacement shall be issued.

6 If the lost or stolen licence is retrieved, it shall not be used and must be returned to the licensing authority.

1 Where, in case of doubt regarding the validity of the licence or a replacement, the competent authorities have requested additional verification, the licensing authority shall confirm the granting of the licence in writing and provide the necessary information.

2 If it considers it necessary, the licensing authority may ask the competent authorities to send it a copy of the licence or the replacement in question.

3 If the licensing authority considers it necessary, it shall withdraw the licence and issue a corrected copy which will include the endorsement ‘Duplicate’ authenticated by stamp and forward it to the competent authorities.

4 If the validity of the licence is confirmed, the licensing authority shall notify the competent authorities of this, preferably electronically, and return the copies of the licence. The copies thus returned shall bear the endorsement ‘Validated on …’ validated/authenticated by stamp.

5 If the licence in question is not valid, the licensing authority shall notify the competent authorities of this, preferably electronically.